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The attorney for a 39-year-old man charged with assaulting a child who didn't take his hat off for the national anthem says his client, compromised by a traumatic brain injury, believes he was acting on an order from President Donald Trump. 

Superior resident Curt Brockway was charged Monday with felony assault on a minor. His defense attorney, Lance Jasper, told the Missoulian Wednesday the president's "rhetoric" contributed to the U.S. Army veteran's disposition when he choke-slammed a 13-year-old, fracturing his skull, at the Mineral County fairgrounds on Aug. 3.

"His commander in chief is telling people that if they kneel, they should be fired, or if they burn a flag, they should be punished," Jasper said. "He certainly didn't understand it was a crime."

A request to the White House for comment was not returned. Mineral County Attorney Ellen Donohue's office said she was unavailable for comment Wednesday afternoon. 

Jasper said he's gotten a handful of hateful voicemails at his office since taking Brockway's case, but that Brockway's family has received "hundreds" of death threats in the days since the 13-year-old boy was flown to Spokane by emergency flight for treatment. KPAX reported the boy is back home after being released from the hospital; no further information has been released on his condition.

Brockway was apprehended at the Superior fairgrounds on Saturday after several people saw the alleged assault. According to charging documents filed in Mineral County District Court on Tuesday, Brockway told Deputy Micah Allard the national anthem was playing before the rodeo got underway, and he noticed a young teenager still wearing his hat. Brockway told the deputy he asked the youth to remove his hat because it was disrespectful, to which the youth responded by saying "(expletive) you."

Charging documents indicate Brockway told the deputy he grabbed the boy by the throat, lifted him into the air and slammed the boy on the ground. Taylor Hennick, who was at the fair, told the Missoulian earlier this week that Brockway defended his action as people closed in on him by saying the boy had been disrespectful. Deputies later learned the boy had suffered a concussion and a fractured skull.

Jasper said Wednesday that he will seek a mental health evaluation for his client before determining how to proceed further in the defense. 

Brockway sustained a traumatic brain injury in a vehicle crash in the winter of 2000, Jasper said. He was on active military duty at Fort Lewis, Washington, at the time, and was driving home to visit family for the holidays, Jasper said. He was honorably discharged from the military due to disability, according to Jasper.

He said Brockway's military background has been central to his identity since suffering the injury to his frontal lobe, which controls cognitive functions like judgement and problem solving.

Couple that injury, Jasper argues, with the president's calls to weed out those who have protested the national anthem or criticized the nation, and Brockway is no longer thinking for himself but responding to a presidential order.

"Obviously he (Brockway) owes a big portion of accountability for what took place, but it's certain that there was other things at work here that definitely contributed," he said.

Trump's rhetoric has varied in degrees of severity. In 2017, he told an Alabama crowd that he would "love" to see NFL owners punish, even fire, players who knelt during the national anthem. Videos of fans who agreed with the president subsequently posted videos burning their jerseys and memorabilia when teams refused to pull players who protested the anthem. 

But Jasper said Wednesday he believes his client's condition means he can be "exploited" by such "animosity" from the president.

"Trump never necessarily says go hurt somebody, but the message is absolutely clear," Jasper said. "I am certain of the fact that (Brockway) was doing what he believed he was told to do, essentially, by the president."

Jasper plans to deploy that argument. "There is the defense that his mental illness or brain injury that will be raised, along with permission given by the president," Jasper said. "Whether that passes muster with the court as a viable defense is for a different day." 

Last year, the 6th U.S. Court of Appeals found Trump did not incite violence at a Louisville, Kentucky, rally in 2016 when he said "get 'em out of here," followed by "don't hurt 'em," as supporters began pushing and shoving protesters at the event.

Brockway's injury played a role in a 2010 incident in which he was charged with a felony after pulling a gun on a family member when he was coming back from cutting firewood. Jasper, who represented Brockway in that case as well, said the court took Brockway's brain injury into consideration during sentencing.

District Court Judge John Larson, who will preside over Brockway's arraignment next week, sentenced Brockway to 10 years of probation in that case. In February, Brockway successfully petitioned for early release from probation after seven years of good behavior, Jasper said.

"Obviously it's a tragedy whenever someone is injured, especially a young kid, but with my client being a veteran with a traumatic brain injury, it is absolutely fair to say he got caught up in a heightened animosity and a heightened rhetoric that too many people are engaged in," Jasper said.

"Everyone should learn to dial it down a little bit, from the president to Mineral County."

Superior is a small town by Montana standards, and Jasper said the Brockway family is "devastated" at the incident.

The boy's mother did not respond to requests for comment Wednesday afternoon. A GoFundMe account "A Victim of Forced Patriotism Needs Our Help" has been set up to assist the boy's family with medical expenses.

Brockway's case was transferred Wednesday from justice court to Mineral County District Court. His arraignment is set for Aug. 14.

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